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Why Judges Can't Save Democracy, Robert L. Tsai
Why Judges Can't Save Democracy, Robert L. Tsai
Faculty Scholarship
In The Specter of Dictatorship,1 David Driesen has written a learned, lively book about the dangers of autocracy, weaving together incisive observations about democratic backsliding in other countries with a piercing critique of American teetering on the brink of executive authoritarianism at home. Driesen draws deeply and faithfully on the extant literature on comparative constitutionalism and democracy studies. He also builds on the work of scholars of the American political system who have documented the largely one-way transfer of power over foreign affairs to the executive branch. Driesen's thesis has a slight originalist cast, holding that "the Founders aimed …
Considerations Of History And Purpose In Constitutional Borrowing, Robert L. Tsai
Considerations Of History And Purpose In Constitutional Borrowing, Robert L. Tsai
Faculty Scholarship
This essay is part of a symposium issue dedicated to "Constitutional Rights: Intersections, Synergies, and Conflicts" at William and Mary School of Law. I make four points. First, perfect harmony among rights might not always be normatively desirable. In fact, in some instances, such as when First Amendment and Second Amendment rights clash, we might wish to have expressive rights consistently trump gun rights. Second, we can't resolve clashes between rights in the abstract but instead must consult history in a broadly relevant rather than a narrowly "originalist" fashion. When we do so, we learn that armed expression and white …
Comparing Judicial Selection Systems, Lee Epstein, Jack Knight, Olga Shvetsova
Comparing Judicial Selection Systems, Lee Epstein, Jack Knight, Olga Shvetsova
Faculty Scholarship
No abstract provided.